Advanced Copyright Issues on the Internet - Fenwick & West LLP

Streambox Ferret corrupted completely the search functionality of the more recentversions of the RealPlayer. 665RealNetworks alleged, among other things, that (i) by circumventing RealNetworks’technological measures that protect the rights of copyright owners to control whether an end-usercan copy and distribute copyright owners’ works, both Streambox Ripper and Streambox VCRviolated Section 1201(b) of the DMCA, 666 and (ii) because the installation of Streambox Ferretmodified the graphical user interface and computer code of RealPlayer, thereby creating anunauthorized derivative work, Streambox’s distribution of Streambox Ferret made itcontributorily liable for copyright infringement, as well as vicariously liable, since Streamboxallegedly controlled and profited from the infringement. 667In a decision issued Jan. 18, 2000, the court entered a preliminary injunction againstStreambox, enjoining the manufacturing and distribution of Streambox VCR and StreamboxFerret, but not of Streambox Ripper. 668 This case raised three important procedural issues withrespect to the DMCA. First, the case raised the interesting issue of who has standing to invokethe remedies of the DMCA – specifically, whether RealNetworks should be considered a properparty to bring the lawsuit, since the material that Streambox Ripper and Streambox VCR placedinto a different file format (i.e., allegedly circumvented a protection measure for) wascopyrighted, not by RealNetworks, but by its customers. As discussed further below, Section1203 of the DMCA provides: “Any person injured by a violation of section 1201 or 1202 maybring a civil action in an appropriate United States district court for such violation.”Significantly, the reference to “any person” suggests that Section 1203 does not limit its scope tothe copyright owner of the material with respect to which a technological protection measure hasbeen circumvented, and the court so held. Specifically, the court ruled that RealNetworks hadstanding to pursue DMCA claims under Section 1203 based on the fact that it affords standing to“any person” allegedly injured by a violation of Section 1201 and 1202 of the DMCA. 669Second, the case raised the issue of what type of “injury” a plaintiff must show underSection 1203. Neither Section 1203 itself nor the legislative history illuminate this issue. In theinstant case, RealNetworks was apparently relying on the argument that, because its customerswere potentially injured by Streambox’s violation of Section 1201(b), RealNetworks itself wasalso injured. Although the court did not explicitly address this issue, by issuing a preliminaryinjunction, it implicitly accepted that RealNetworks was exposed to injury cognizable by theDMCA.665666667668669Id. 22-24.Id. 33-35 & 41-43.Id. 48-49.RealNetworks, Inc. v. Streambox Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wa. 2000).Id. at *15-16. This holding is consistent with CSC Holdings, Inc. v. Greenleaf Electronics, Inc., 2000 U.S.Dist. LEXIS 7675 (N.D. Ill. 2000). In that case the plaintiff was a cable provider bringing suit againstdefendants under the DMCA for selling and distributing pirate cable descrambling equipment. The court heldthat the plaintiff was authorized to bring suit under Section 1203(a), as it was a person injured by a violation ofthe DMCA.- 161 -